Upon the conclusion of a disciplinary arbitration the arbitrator found the
employee guilty of certain charges and made an “interim award,” imposing a
penalty of suspension without pay for 45 days and directing that the employee
“otherwise be made whole.”

The final award mirrored the arbitrator's interim award but
further provided that the arbitrator was "maintain[ing] jurisdiction . . . in the
event that any dispute [arose] between the parties over the implementation of
[the] [a]ward."

After the employee returned to work he filed a grievance
alleging that the Department of Correctional Services*
had not restored all of the back pay, time accruals and other benefits due him
as directed by arbitration award.

Ultimately it appears that the employee’s union, the New York
State Corr. Officers & Police Benevolent Assn. [NYSCOPBA] asked the
arbitrator to reopen the arbitration to ascertain whether employee had been
made whole pursuant to the terms of his award. A hearing date was
scheduled, but the Department, contending that the arbitrator was powerless to,
among other things, reopen, modify or explain the prior award, objected.

Notwithstanding the Department’s objection, the arbitrator
conducted a hearing in which only NYSCOPBA participated and subsequently awarded
the employee approximately $4,000 in vacation and holiday accruals.

The Department filed a petition pursuant to Article 75 of
the Civil Practice Law and Rules seeking to vacate the award upon the ground
that the arbitrator exceeded his power in reopening the proceeding. In
rebuttal, NYSCOPBA argued that the Department had waived its right to seek
vacatur of the award and cross-moved to confirm the award.

The Appellate Division affirmed the Supreme Court’s ruling,
rejecting NYSCOPBA’s argument that the Department had waived any of its rights. The court explained that the Department was “not immediately aggrieved by the
arbitrator's purported retention of jurisdiction, the exercise of which
admittedly was conditioned upon a future … entirely theoretical dispute between
the parties as to the subsequent implementation of the award.”

Further, said the Appellate Division, while NYSCOPBA is
correct that "a party that participates in the arbitration may not later
seek to vacate the award by claiming it never agreed to arbitrate the dispute
in the first place," here the Department expressly objected to the proposed
hearing in writing, and it is undisputed that it did not attend in the hearing.
Accordingly, the Appellate Division said that it was satisfied that the
Department did not "actively participate [in the arbitration]."

As to merits of NYSCOPBA’s appeal, the court said that it is
well settled “that an arbitrator has broad discretion to determine a dispute
and fix a remedy, and that any contractual limitation on that discretion must
be contained, either explicitly or incorporated by reference, in the
arbitration clause itself.’

The Appellate Division said that the controlling provision
of the collective bargaining agreement between the parties specifically
provides that “[d]isciplinary arbitrators shall confine themselves to
determinations of guilt or innocence and the appropriateness of proposed
penalties . . . [and] shall neither add to, subtract from nor modify the
provisions of [the CBA]." Further, said the court, the CBA agreement
further provides that "[t]he disciplinary arbitrator's decision with
respect to guilt[,] innocence [or] penalty . . . shall be final and binding
upon the parties," which language “evidences a clear agreement by the
parties to the CBA to ‘limit the discretion of disciplinary arbitrators.’"

While there may be circumstances where an
arbitrator's retention of jurisdiction will be deemed permissible, in this instance the
Appellate Division concluded that “such circumstances cannot — in light of the
restrictive language of the underlying CBA — be said to exist here.”

Accordingly, court ruled that arbitrator's retention of
jurisdiction in this matter "clearly exceed[ed] a specifically enumerated
limitation [upon his] power” and the arbitrator's authority over the issues
submitted to him ended once he rendered his decision.

* The Department of Correctional Services is now
known as the Department of Corrections and Community Supervision.

Handbooks focusing on New York State and Municipal Public Personnel Law:

The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State. A 1900+ page e-book. For more information click on http://booklocker.com/books/5215.html

The Layoff, Preferred List and Reinstatement Manual - a 435 page handbook reviewing the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on http://booklocker.com/books/5216.html

A Reasonable Disciplinary Penalty Under the Circumstances - A 600+ page guide to penalties imposed on public employees in New York State found guilty of selected acts of misconduct. For more information, click on http://booklocker.com/books/7401.html

General Municipal Law§§ 207-a and 207-c - Disability Leave for fire, police and other public sector personnel - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder. For more information click on http://booklocker.com/books/3916.html

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Handbooks focusing on New York State and Municipal Public Personnel Law:

The Discipline Book, - A concise guide to disciplinary actions involving public employees in New York State set out in a 2100+ page e-book. For more information click on http://booklocker.com/books/5215.html

A Reasonable Disciplinary Penalty Under the Circumstances - a 442-page volume focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a paperback print edition and in an electronic [e-book] edition. For more information click on http://booklocker.com/books/7401.html

The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on http://booklocker.com/books/5216.html

Disability Leave for fire, police and other public sector personnel - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder. For more information click on http://booklocker.com/books/3916.html